John G. Miller, on behalf of himself and all others similarly situated v. Redwood Toxicology Laboratory, Inc.

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 11-3073
___________________________
John G. Miller, on behalf of himself
and all others similarly situated
lllllllllllllllllllll Plaintiff - Appellant
v.
Redwood Toxicology Laboratory, Inc.
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the District of Minnesota - Minneapolis
____________
Submitted: May 17, 2012
Filed: August 23, 2012
____________
Before LOKEN and BEAM, Circuit Judges, and PERRY,1 District Judge.
____________
BEAM, Circuit Judge.
1The Honorable Catherine D. Perry, Chief Judge, United States District Court
for the Eastern District of Missouri.

-- 1 of 13 --

John Miller appeals from the district court's 2 grant of Redwood Toxicology
Laboratory's motion to dismiss with prejudice Miller's Minnesota state law claims
raised in federal court under the court's diversity jurisdiction. Because Miller lacks
Article III standing to raise the state statutory claims in federal court, and because his
negligence claim likewise fails under Federal Rule of Civil Procedure 12(b)(6), we
affirm the district court's dismissal.
I. BACKGROUND
As did the district court, we recite the following facts according to the
allegations in the pleadings, including Miller's initial and amended complaints and the
record created as a result of Miller's "motion for temporary restraining order,
preliminary injunction, [and] expedited discovery," which Miller filed after Redwood
filed the instant motion to dismiss. "When considering . . . a motion to dismiss under
Fed. R. Civ. P. 12(b)(6)[], the court generally must ignore materials outside the
pleadings, but it may consider some materials that are part of the public record or do
not contradict the complaint, as well as materials that are necessarily embraced by the
pleadings." Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999)
(internal quotations omitted);3 see also Illig v. Union Elec. Co., 652 F.3d 971, 976 (8th
Cir. 2011).
2The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.
3While courts primarily consider the allegations in the complaint in determining
whether to grant a Rule 12(b)(6) motion, courts additionally consider "matters
incorporated by reference or integral to the claim, items subject to judicial notice,
matters of public record, orders, items appearing in the record of the case, and exhibits
attached to the complaint whose authenticity is unquestioned;" without converting the
motion into one for summary judgment. 5B Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1357 (3d ed. 2004).
-2-

-- 2 of 13 --

Redwood is a corporation in the business of drug and alcohol screening. One
test offered by Redwood is the Ethyl Glucuronide/Ethyl Sulfate (EtG/EtS) Test, often
marketed to alcohol abstinence programs such as those of probation offices, as well
as to professional license monitoring programs. Miller is a recovering alcoholic
currently on supervised probation in Minnesota because of multiple state law criminal
penalties incurred as a result of his drinking.
The test at issue screens urine samples for EtG/EtS, which are metabolites of
ethanol, and can be found in urine up to three to four days after ethanol is ingested.
In addition to beverage alcohol products, ethanol may also be derived from household
and food items. EtG/EtS from these common sources are indicated by Redwood as
"incidental exposure." To distinguish incidental exposure from intentional drinking
in its testing, Redwood establishes a numerical cut-off. As alleged in the complaint,
Redwood represents that any test results higher than a cutoff of 100 ng/mL of EtG
coupled with 25 ng/mL of EtS, are positive for alcohol, over and above incidental
exposure.
According to Miller's complaint, on June 15, 2010, Miller provided a urine
sample for testing at Redwood's laboratory at the direction of his probation officer.
The test results indicated that Miller's EtG/EtS levels were above a specified cut-off
level, which cut-off had been established by the State of Minnesota just as do all
agencies that contract with Redwood. Based on these test results, Miller's probation
officer filed a violation against him and took Miller into custody. Miller insisted, then
and now, that he did not drink alcohol but that his test results were positive because
of incidental exposure to alcohol.
At the contested probation violation hearing, each party submitted competing
evidence, by way of testimony from a toxicologist (State of Minnesota's expert) and
a medical doctor (Miller's expert), as to whether Miller's test results could have been
"positive" as a result of incidental exposure. The state court judge concluded that
-3-

-- 3 of 13 --

Miller had presented "credible testimony and evidence about his activities in the days
leading up to the June 15, 2010[,] urine test," and that the State failed to meet its
burden of proving by clear and convincing evidence that Miller had violated his
probation. The court noted Miller's "significant incidental exposure" and ordered that
Miller be released immediately–four and one half months after his June 2010 arrest.
Miller subsequently sued Redwood in federal court, initially alleging claims
under Minnesota state law that Redwood violated the Minnesota Consumer Fraud Act
("CFA"), Minn. Stat. § 325F.69, subd. 1; as well as additional claims of common-law
negligence, fraudulent and negligent misrepresentation, and products liability and
breach of warranty claims. Miller alleged that he suffered similar injuries for each
claim–that Redwood's alleged misrepresentations resulted in an erroneous probation
violation report, detention, and lost income, lost employment, lost liberty and
emotional harm. Miller then filed an amended complaint, adding a claim under the
Minnesota False Statement in Advertising Act ("FSAA"), Minn. Stat. § 325F.67, and
additionally retaining only the CFA and negligence claims. The amended complaint
also sought class certification on behalf of Miller and others similarly situated,
seeking to vindicate Miller's concern that others, too, had suffered similarly as a result
of Redwood's alleged actions. On each claim in the amended complaint, the alleged
injuries varied: on count I (false statements in advertising) Miller alleged that he "and
countless others, have been harmed as a result"; on count II (consumer fraud act)
Miller alleged no specific injury; and on count III (negligence) Miller alleged that he
suffered damages including, but not limited to, lost income, lost employment, loss of
liberty and emotional harm.
The district court dismissed Miller's amended complaint and his class claims,
determining that Redwood's statements were either true or mere "puffery," and thus
not actionable at law. The district court thus held that substantively, Miller's
allegations failed. The court determined that certain of the challenged representations
(that its test is "ideal" for certain situations and is the "most definitive" indicator) are
-4-

-- 4 of 13 --

simply expressions of opinion about the quality or superiority of Redwood's EtG/EtS
test, which amounts to mere puffery and are thus not actionable under the Minnesota
statutes. The court further held that the "highly accurate" claim by Redwood is not
false or misleading. Third, the court noted that Redwood had in fact received the
approval of the U.S. Department of Health and Human Services so that claim, too, is
not false or misleading. Finally, as to Miller's claim for negligence, the court declined
to impose a duty on Redwood beyond the duty to act with reasonable care in the
collection and testing of specimens.
Very generally, on appeal, Miller claims that the issues determined by the court
at dismissal are best suited for a jury and the court should have deferred to a jury on
these issues. Miller additionally claims that the court erroneously applied federal law
to two of the issues pending before the court. We, however, view this case from a
different vantage point.
II. DISCUSSION
A. Principles of Constitutional Standing
One critical missing link in this case to-date is a discussion of the federal courts'
ability to adjudicate this matter. 4 "[E]very federal appellate court has a special
4In the normal course, we review de novo a district court's decision to grant a
motion to dismiss, accepting all factual allegations in the complaint as true and
drawing all inferences in favor of the nonmovant. Blankenship v. USA Truck, Inc.,
601 F.3d 852, 853 (8th Cir. 2010); Brooks v. Midwest Heart Group, 655 F.3d 796,
799 (8th Cir. 2011). "At this stage of the litigation, we accept as true all of the factual
allegations contained in the complaint, and review the complaint to determine whether
its allegations show that the pleader is entitled to relief." Schaaf v. Residential
Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008). Dismissal is proper where the
plaintiffs' complaint fails to state a claim upon which relief can be granted. Fed. R.
Civ. P. 12(b)(6). "The complaint must 'provide a defendant with some indication of
-5-

-- 5 of 13 --

obligation to satisfy itself not only of its own jurisdiction, but also that of the lower
courts in a cause under review, even though the parties are prepared to concede it."
Arizonans for Official English v. Ariz., 520 U.S. 43, 73 (1997) (alteration in original)
(quotation and internal quotations omitted). Whether there is Article III standing is
always an antecedent question. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,
94-96, 101 (1998). Accordingly, the threshold question in this matter is whether
Miller, the plaintiff below, has standing to sue. "Article III, § 2, of the Constitution
extends the 'judicial Power' of the United States only to 'Cases' and 'Controversies.'"
Id. at 102. "[T]he question of standing is whether the litigant is entitled to have the
[federal] court decide the merits of the dispute or of particular issues." Warth v.
Seldin, 422 U.S. 490, 498 (1975). "Standing to sue in any Article III court is, of
course, a federal question which does not depend on the party's . . . standing in state
court." Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804 (1985).
The irreducible constitutional minimum of standing contains three
requirements. First and foremost, there must be alleged (and ultimately
proved) an injury in fact–a harm suffered by the plaintiff that is concrete
and actual or imminent, not conjectural or hypothetical. Second, there
must be causation–a fairly traceable connection between the plaintiff's
injury and the complained-of conduct of the defendant. And third, there
must be redressability–a likelihood that the requested relief will redress
the alleged injury. This triad of injury in fact, causation, and
redressability constitutes the core of Article III's case-or-controversy
requirement, and the party invoking federal jurisdiction bears the burden
of establishing its existence.
Steel Co., 523 U.S. at 102-04 (internal quotations omitted).
the loss and the causal connection that the plaintiff has in mind.'" Schaaf, 517 F.3d at
549 (quoting Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005)).
-6-

-- 6 of 13 --

When a plaintiff alleges injury to rights conferred by statute, two separate
standing-related inquiries are implicated: whether the plaintiff has Article III standing
(constitutional standing) and whether the statute gives that plaintiff authority to sue
(statutory standing). Katz v. Pershing, LLC, 672 F.3d 64, 75 (1st Cir. 2012); see also
Steel Co., 523 U.S. at 89. Article III standing must be decided first by the court and
presents a question of justiciability; if it is lacking, a federal court has no subject-
matter jurisdiction over the claim. See Steel Co., 523 U.S. at 92-94. By contrast,
statutory standing goes to the merits of the claim. See Bond v. United States, 131 S.
Ct. 2355, 2362-63 (2011). The "issue of statutory standing . . . has nothing to do with
whether there is case or controversy under Article III," Steel Co., 523 U.S. at 97
(emphasis in original), and we are careful not to conflate the two. Braden v. Wal-Mart
Stores, Inc., 588 F.3d 585, 591-92 (8th Cir. 2009); Red River Freethinkers v. City of
Fargo, 679 F.3d 1015, 1023 (8th Cir. 2012) ("The standing inquiry is not . . . an
assessment of the merits of a plaintiff's claim.").
Though all are termed "standing," the differences between statutory,
constitutional, and prudential standing are important. Constitutional and
prudential standing are about, respectively, the constitutional power of
a federal court to resolve a dispute and the wisdom of so doing.
Statutory standing is simply statutory interpretation: the question it asks
is whether Congress[, or the State,] has accorded this injured plaintiff the
right to sue the defendant to redress his injury.
Graden v. Conexant Sys., Inc., 496 F.3d 291, 295 (3d Cir. 2007) (emphasis in
original) (internal citations omitted).
"State courts may afford litigants standing to appear where federal courts would
not, but whether they do so has no bearing on the parties' Article III standing in
federal court." Perry v. Brown, 671 F.3d 1052, 1074 (9th Cir. 2012). Accordingly,
looking at the particulars of Miller's complaint, it does not measure up to Article III's
requirements. The district court articulated that the "core of Miller's CFA and FSAA
-7-

-- 7 of 13 --

claims is the argument that Redwood misleads the public into believing that its
EtG/EtS test, with cut-off levels of 100 ng/mL of EtG and 25 ng/mL of EtS, is
dispositive as to intentional consumption of beverage alcohol." According to Miller's
initial complaint, although wholly omitted from the amended complaint,5 the alleged
injury in fact to Miller and the putative class emerging from the alleged statutory
violations is that Redwood's alleged misrepresentations result in erroneous probation
violation reports, leading to unwarranted detention, lost income, lost employment, loss
of liberty and emotional harm. Even presuming these are concrete injuries
contemplated by the amended complaint, and purportedly sufficient for purposes of
Article III, the complaint nonetheless fails. Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992) ("At the pleading stage, general factual allegations of injury resulting
from the defendant's conduct may suffice, for on a motion to dismiss we presume that
general allegations embrace those specific facts that are necessary to support the
claim." (alteration and internal quotation omitted)).
Miller's claims falter in federal court on the matter of causation. "When the
injury alleged is the result of actions by some third party, not the defendant, the
plaintiff cannot satisfy the causation element of the standing inquiry." Katz, 672 F.3d
at 76; see also Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1447-48
(2011). "[T]here must be a causal connection between the injury and the conduct
5The amended complaint fails to specifically describe the alleged harm resulting
from Redwood's alleged misrepresentations, only alleging that "Mr. Miller, and
countless others, have been harmed as a result." While we read these allegations
liberally, and do not base our dismissal of the action on this basis, it is difficult to
articulate the alleged injuries based on such generalities regarding any alleged injury
in fact. While "a court should construe the complaint liberally in the light most
favorable to the plaintiff," Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir.
2008), and "general factual allegations of injury resulting from the defendant's
conduct may suffice," Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992), it is
still necessary to include some "well-pleaded factual allegations" to support the claim.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
-8-

-- 8 of 13 --

complained of–the injury has to be 'fairly . . . trace[able] to the challenged action of
the defendant, and not . . . th[e] result [of] the independent action of some third party
not before the court.'" Lujan, 504 U.S. at 560-61 (alterations in original) (quoting
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)). Here, we are
unable to avoid the proverbial elephant in the room–the State of Minnesota, also
referred to as Polk County in Miller's initial complaint.
The Minnesota Supreme Court took the opportunity by way of certified
questions in Group Health Plan, Inc. v. Philip Morris Inc., to announce that a strict
showing of causation is not required in a damages claim under the Minnesota
misrepresentation in sales statutes. 621 N.W.2d 2, 13-14 (Minn. 2001). "[T]he statute
requires that there must be some 'legal nexus' between the injury and the defendants'
wrongful conduct." Id. at 14. Though relaxed, and proof of individual reliance is not
required in all actions, the state court did not elaborate on what particular manner of
proof would be necessary to establish the necessary connection under the state statute
in Group Health. Id. at 15. However, causation remains a key element of Article III
standing. No matter that Miller and the putative class might be able to seek protection
under Minnesota law, this does not "vitiate the altogether different requirement of
causation" in federal court. Katz, 672 F.3d at 77. Miller must still plausibly allege
a direct causal relationship between his detention and other alleged injuries and
Redwood's purportedly misleading statements. Id. Miller fails to satisfy this essential
prerequisite.
Miller alleges in the amended complaint that "[b]ased solely on the test results,
a probation violation was filed against [him] and he was arrested." Reviewing the
record before us, however, there is too big a gap for purposes of Article III. Miller's
allegation is merely a bare hypothesis and does not adequately trace his alleged
injuries to Redwood. Indeed, Redwood did not file a probation violation against
Miller. It was the State that filed the probation violation and incarcerated Miller.
Too, it was the State that chose the particular test, ultimately established and
-9-

-- 9 of 13 --

implemented the cut-off levels for the probationers it tested, and interpreted the test
results provided by Redwood accordingly. The amended complaint does not and
cannot allege a causal connection between Redwood's actions and any presumed
injury suffered by Miller sufficient for purposes of Article III. There is no allegation
that Miller's alleged injuries are a direct consequence of Redwood's allegedly unlawful
conduct. See Red River Freethinkers, 679 F.3d at 1024 (discussing that Article III
causation must be fairly traceable to, and a direct consequence of, the alleged unlawful
conduct). Redwood's literature instructs that it is very important for its clients to
obtain clinical correlation in addition to analyzing any test results. For purposes of
Article III, too many factors stand in the way of a direct causal relationship. Miller
fails to plausibly assert a direct causal relationship between his alleged injuries and
Redwood's purported misrepresentations. That he fails to include any allegations
regarding the State's prominent role in all of these injuries is fatal for purposes of
Article III.
At bottom, because Miller lacks Article III standing to challenge Redwood's
representations in federal court, it is unnecessary for us to resolve whether he had
statutory standing.6 Noted above, a federal court lacks jurisdiction over a case unless
the plaintiff has standing to sue under Article III of the Constitution.
6The district court's analysis of the merits of Miller's claims is ill-suited to their
application in the constitutional standing context. We do not reach a discussion of
Iqbal or Twombly, nor do we engage in any other similar discussion under the Rule
12(b)(6) rubric, as they deal with a fundamentally different issue. Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007) (addressing the pleading required to survive a motion
to dismiss for failure to state a claim); Ashcroft v. Iqbal, 556 U.S. 662 (2009) (same).
Our focus remains on jurisprudence addressing constitutional standing.
-10-

-- 10 of 13 --

B. Common-Law Negligence Claim
Miller also alleges that Redwood abridged his common-law rights–he alleged
his injuries occurred because Redwood provided Miller test results that were less than
reliable, and "fail[ed] to warn [Miller] of its known [false] positive rate." On these
allegations, Miller has Article III standing. These injuries are actual, could be
traceable to Redwood's alleged acts, and redressable by a verdict in Miller's favor.
Accordingly, the standing requirements are satisfied. See Lujan, 504 U.S. at 560-61.
The issue, however, of whether Miller's allegations are sufficient to state a cause of
action under Rule 12(b)(6) presents a different and distinct matter. Whether a
complaint states a cause of action is a question of law which we review on appeal de
novo. Holden Farms, Inc. v. Hog Slat, Inc., 347 F.3d 1055, 1059 (8th Cir. 2003).
The district court dismissed Miller's negligence claims because the court
declined to impose a duty of care on laboratories such as Redwood beyond the duty
of reasonable care in the collection and testing of a specimen. As just noted, Miller
alleged in the amended complaint that Redwood owed him a duty to provide test
results that were reliable indicators of whether Miller had consumed alcohol as well
as a duty to warn Miller of its known false positive rate. Miller did not allege that
Redwood failed to act with reasonable care in the collection or actual testing of
Miller's sample. In this diversity case, Minnesota substantive law applies. Erie R.R.
Co. v. Tompkins, 304 U.S. 64, 78 (1938); Cockram v. Genesco, Inc., 680 F.3d 1046,
1050 (8th Cir. 2012). However, Minnesota has yet to impose such a duty as that
articulated by Miller in this action. Accordingly, we must predict how the Supreme
Court of Minnesota would rule, and "'we follow decisions from the intermediate state
courts when they are the best evidence of [Minnesota] law.'" Cockram, 680 F.3d at
1050 (quoting Eubank v. Kan. City Power & Light Co., 626 F.3d 424, 427 (8th Cir.
2010). If necessary, we may additionally consider analogous decisions, considered
dicta, and any other reliable data. Gage v. HSM Elec. Prot. Servs., Inc., 655 F.3d 821,
825 (8th Cir. 2011).
-11-

-- 11 of 13 --

We agree with the district court's analysis regarding the extent of Redwood's
duty. "Generally, a defendant's duty to a plaintiff is a threshold question because '[i]n
the absence of a legal duty, the negligence claim fails.'" Domagala v. Rolland, 805
N.W.2d 14, 22 (Minn. 2011) (alteration in original) (quoting Gilbertson v. Leininger,
599 N.W.2d 127, 130 (Minn. 1999)). Determining whether a duty exists requires an
assessment of (1) the relationship of the parties, and (2) the foreseeability of the risk
involved. Id. at 23 (noting that a duty to act with reasonable care for the protection
of others arises in two instances: (1) "when the defendant's own conduct creates a
foreseeable risk of injury to a foreseeable plaintiff," and (2) "when action by someone
other than the defendant creates a foreseeable risk of harm to the plaintiff and the
defendant and plaintiff stand in a special relationship"). Contrary to Miller's
argument, our determination regarding foreseeability is properly decided by the court
and does not require jury submission for its resolution. Id. at 27.
As in Domagala, we must first determine whether Redwood owed a duty to
Miller in the manner contemplated by this action because Redwood cannot breach a
nonexistent duty. Id. at 22. Here, based upon our review of Minnesota case law, and
given the State's autonomy discussed above regarding how it uses the test results
provided to it by Redwood, we predict that the Minnesota courts would hold that
Redwood did not owe Miller a specific duty to warn nor did it owe Miller a general
duty of reasonable care, at least not one beyond that of properly handling the tests and
accurately detecting and reporting the presence of the metabolites. Id. at 24-26.
(discussing Minnesota case law regarding the imposition of a duty to act with
reasonable care and the specific duty to warn when a special relationship exists).
Accordingly, we affirm the dismissal of Miller's negligence claim.
-12-

-- 12 of 13 --

C. Class Certification
One of Miller's prayers for relief sought class certification. This, however, is
a byproduct of this putative class action. Because the underlying claims fail, so too
does the requested class certification. We thus affirm the district court's ruling
dismissing Miller's class claims.
III. CONCLUSION
For the reasons stated herein, we affirm the district court's dismissal.
______________________________
-13-

-- 13 of 13 --